Conduct and Competence Committee Substantive Hearing & 26 July Nursing and Midwifery Council, First Floor, 61 Aldwych, London, WC2B 4AE

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1 Conduct and Competence Committee Substantive Hearing & 26 July 2011 Nursing and Midwifery Council, First Floor, 61 Aldwych, London, WC2B 4AE Name of Registrant: NMC PIN: Part(s) of the Register: Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Council s officer: Jane Elizabeth Charman 69D2162E Registered Nurse - Adult Shropshire Conduct Mrs J Worthington (Chair/ Registered Nurse -Adult) Mrs J Allfrey (Lay member) Ms J Fecitt (Registered Nurse Adult) Mr Angus Macpherson Mr D Vincent Representation: Nursing and Midwifery Council: Represented by Elizabeth Wheeler, Counsel, Nursing and Midwifery Council Regulatory Legal Team. Registrant: Mrs Charman was not present and was not represented. Facts proved: 1a, 1b, 2b(i), 2b(ii), 2b(iii), 2b(iv), 2b(v), 3, 4. Facts not proved: 2a. Fitness to practise: Impaired. Sanction: Striking Off Order. Interim order: Interim Suspension Order 18 months. Charges as read: That whilst employed as a band 5 staff nurse on Ward C4 at Basingstoke and North Hampshire Hospital: 1. On 6 November 2008 you: a. Did not administer a prescribed drug, namely Iloprost b. Administered a drug that had not been prescribed, namely Flolan 2. On 28 February and 1 March 2009, you failed to administer the 18:00hrs dose of the following prescribed medication to Patient X: a. on 28 th February 2009 Clexane b. on 1 st March 2009: i. Clexane ii. Movicol iii. Pregabalin iv. Aqueous Cream v. Ensure Page 1 of 1

2 3. Between 2 nd and 5 th March 2009, you retrospectively amended Patient X s prescription chart to indicate that Pregabalin could not be found on the Ward on 1 st March Your conduct as described in charge 3 above, was dishonest. AND, in light of the above, your fitness to practise is impaired by reason of your misconduct. Determination on Service of Notice of Hearing The panel first considered whether proper service has been effected upon Mrs Charman in accordance with the rules. Rule 11 of the Nursing and Midwifery Council s Fitness to Practise Rules 2004 provides that the notice of hearing should be sent to Mrs Charman no later than 28 days prior to the hearing. In this case the notice was sent on the 24 th May 2011 to Mrs Charman s registered address. The notice was delivered on the 25 th May The panel has heard the legal assessor s advice in regards to service. In particular he made reference to Rules 11 and 34 of the 2004 Rules. The panel accepted this advice and is satisfied that all reasonable efforts have been made by the NMC in serving notice for today s hearing. Proceeding in the absence of the registrant The panel next considered whether to proceed in the absence of the registrant. The panel has heard submissions from the case presenter Ms Wheeler on behalf of the NMC, reminding them of Rule 21(2)b of the 2004 Rules. Reference was also made to the case of R v Jones [2002]. The panel was advised by the legal assessor that the 2004 Rules contain guidance in relation to postponements and adjournments. He reaffirmed Rule 21(2)b. The panel has accepted the legal assessor s advice. It has decided to proceed with the case in the absence of the Registrant because of public interest in the expeditious disposal of the case. The panel notes that the allegations go back to 2008 and it is mindful of witnesses ability to recollect at a later date. There is also potential inconvenience to the NMC witnesses should the matter not proceed. Finally, rule 32 invites the panel to take into account fairness to the Registrant and in the present case her approval in a telephone note dated 19 July 2011 that the matter proceeds in her absence is a further reason to proceed today. Application to amend the charge under Rule 28. The NMC Case Presenter has made an application to amend allegation 2 under Rule 28 of the NMC Rules 2004.The stem of allegation 2 reads On 28 February and 1 March 2009, you failed to administer the 18:00hrs dose of the following prescribed medication to Patient X. The case presenter has applied for the stem to read 18:00hrs and / or 20:00hrs. The panel accepted the legal assessor s advice. It has the power to amend the allegation unless, having regard to the merits of the case and the fairness of the proceedings, the amendment cannot be made without injustice. It has decided to allow the amendment. The mischief to which the allegation is directed is the failure to administer medication; the precise timing of that failure is largely not relevant. Mrs Charman has had the documents that relate to the allegation for some time. Therefore she will be aware that they support the amendment of the allegation which the panel hereby permits. Determination on the facts. The panel find the allegations in 1a, 1b, 2b(i) (ii), (iii), (iv), (v), 3 and 4 proved. The panel does not find allegation 2a proved. The reasons for this decision are as follows: In considering these matters the panel listened carefully to the representations of Ms Wheeler, the case presenter, and accepted the advice of the legal assessor. The panel heard live evidence from three witnesses, Julie Uzzell, Joanne Tambellini and Zena Ludick. In addition it read the written statement of Biji Manoj. Further evidential documentation was presented to the panel in support of the live evidence and the statement of Biji Manoj. Page 2 of 2

3 The Panel has borne in mind that the burden of proof rests on the NMC, and that the standard of proof is the civil standard, namely the balance of probabilities. This means that any fact will be found proved if the Panel is satisfied that it was more likely than not to be true. These matters arise out of Ms Charman s employment at Basingstoke and North Hampshire Hospital in 2008 and 2009 when she was employed as a band 5 staff nurse. Charge 1a. Did not administer a prescribed drug, namely Iloprost Charge 1b. Administered a drug that had not been prescribed, namely Flolan The panel considered both limbs of charge 1 together. In her witness statement dated 22 June 2010, Ms Biji Manoj explained that, on 6 th November 2008, Ms Charman was preparing an infusion for a patient. Ms Charman asked her to get the patient s drugs from the treatment room. Ms Manoj returned from the treatment room with an injection of Flolan which had already been drawn up. Miss Charman stated that Flolan was the prescribed injection and administered it via IV infusion to the patient. Miss Julia Uzzell produced in evidence the patient s prescription chart which shows that the drug which was prescribed was not Flolan but Iloprost. Ms Charman admitted the fact that she had administered the wrong medication in an incident report form which she prepared and in a letter. Charge 1a and 1b are therefore found proved. Charge 2a. On 28 February 2009 you did not administer the 18:00hrs dose of Clexane. The panel noted that on Patient X s prescription chart for 28 February 2009 at hours, there was a question mark in the box in respect of the drug Clexane. Ms Charman was on duty on that shift on ward C4. She administered other medication to Patient X. The only evidence relating to the alleged failure on Ms Charman s part to administer Clexane at that time was the prescription chart. The panel considered that there were two possible explanations. Either Ms Charman administered the medication Clexane but failed to record having done so, alternatively she did not administer it. Ms Charman was not charged in the alternative. Therefore on the balance of probabilities the panel does not find charge 2a proved. Charge 2b. On 1 March 2009 you did not administer the 18:00hrs dose of Clexane, Movicol, Pregabalin, Aqueous Cream and Ensure. The panel noted that the relevant box on Patient X s prescription chart was not initialled against these drugs on 1 st March 2009 at 18:00 / 20:00 hours. Ms Charman administered other medication to Patient X at that time on that day. The panel therefore find that she assumed the obligation to administer the medication to Patient X. The panel heard evidence from Miss Tambellini that when she attended Patient X on ward C4 on the following day, she found him in pain. She reviewed his prescription chart and noted that the medication the subject of the charge had not been recorded as having been administered the previous day. She drew this to the attention of Ms Charman but Ms Charman failed to provide any explanation. Later when asked about this matter on 5 th March 2009 by Ms Ludick, Head of Nursing, Ms Charman admitted that she had not administered Pregabalin. She provided no explanation as to why she did not administer the other drugs. In the light of all this evidence, the panel has concluded, on the balance of probabilities, that the medication the subject of this charge was not administered by Ms Charman on 1 st March Charge 3. Between the 2 nd and 5 th of March 2009 you retrospectively amended Patient X s prescription chart to indicate that Pregabalin could not be found on the Ward on the 1 st of March The panel heard evidence from Ms Ludick that there was a discrepancy between the copy of the original prescription chart for Patient X on 1 st March 2009, which Ms Tambellini took on 2 nd March 2009, and the original prescription chart which remained on ward C4. On the original prescription chart the figure 1 (Indicating that the drug was not available on the ward) was entered in the box where the administration Page 3 of 3

4 of Pregabalin should be recorded at 20:00 hours. There was no corresponding entry on the copy taken by Ms Tambellini. When Ms Ludick questioned Ms Charman about this entry on 5 th March 2009, Ms Charman admitted that she had made the entry. That entry must have been made retrospectively because it was not on the copy taken by Ms Tambellini. Charge 3 is therefore found proved. Charge 4. Your conduct as described in charge 3 above, was dishonest. The panel has carefully considered whether the action of Ms Charman as set out above amounts to dishonesty. In the interview dated 5 March 2009 Ms Charman contended that she retrospectively entered the figure 1 on the prescription chart of Patient X to indicate that she could not find Pregabalin on the ward on the 1 st March The panel has noted that, when Ms Tambellini drew the prescription chart of Patient X to the attention of Ms Charman on the 2 nd March 2009, Ms Charman did not mention that Pregabalin could not be found on the ward on 1 st March Moreover she did not record the figure 1 on the prescription chart on the shift upon which she was working on 1 st March 2009 to indicate that the drug could not be found. Further, the panel accepted the evidence of Ms Ludick that she (Ms Ludick) carefully checked whether Pregabalin was available on the ward on 1 st March It was normally kept in the locker by Patient X s bed. She told the panel that Pregabalin had been administered on 28 February 2009 by Ms Charman. It was also administered on 2 nd March It had been dispensed by the hospital pharmacy to the ward on 17 February 2009 and had not been recalled. She found the remaining stock of that drug in Patient X s locker by his bed when she checked after 1st March In the circumstances the panel rejects Ms Charman s explanation that she genuinely entered the figure 1 on Patient X s prescription chart on the basis that she could not find the Pregabalin when she looked for it on 1 st March It finds that her actions in so amending the prescription chart retrospectively were dishonest. Determination on impairment of Fitness to Practise Misconduct When considering whether or not Ms Charman is guilty of misconduct by reason of the facts which it has found, the panel recognises that Ms Charman s behaviour falls into two categories. The first relates to drug administration errors committed in November 2008 and March The first of those errors was the administration of the wrong medication. Ms Charman recognised the error which she had made and took considerable steps to address it. However it was succeeded by the errors which she committed on 1 st March 2009 when she omitted to administer a number of drugs to Patient X and, having done so, amended the prescription chart retrospectively in respect of Pregabalin. This second error demonstrated that Ms Charman remained liable to commit serious medication administration errors. In breach of the Code: Standards of Conduct and Ethics for Nurses and Midwives, she did not provide a high standard practice and care at all times. In particular, contrary to Paragraph 35 of the Code she did not deliver care based on best practice. In respect of the alterations of the record, she was in breach of paragraph 44 of the Code. In the light of the fact that these errors succeeded one upon the other, the panel does not regard them as isolated and considers that they are serious. In respect of the second category of behaviour, Ms Charman has been found to be dishonest. She sought to cover up the error which she made in failing to administer Pregabalin on 1 st March 2009 by asserting that that drug could not be administered because she could not locate it on the ward. The dishonesty committed by Ms Charman directly related to the care of Patient X. Any case of dishonesty on the part of a registered Nurse falls into the category of being serious, all the more so when it relates to patient care. In breach of the code Ms Charman failed to be open and honest, to act with integrity and to uphold the reputation of the profession. In the circumstances the panel finds Ms Charman guilty of misconduct by reason of the facts which it has found proved. The panel therefore turned to consider whether or not Ms Charman s fitness to practice is impaired by reason of her misconduct. It finds this to be the case. It is mindful of the recent authority of CHRE v NMC & Grant (2011) EWHC 927 in which Mrs Justice Cox stated: Page 4 of 4

5 However it is essential, when finding whether Fitness to Practice is impaired, not to lose sight of the fundamental considerations.. namely the need to protect the public and the need to prepare and uphold proper standards of conduct and behaviour so as to maintain proper public confidence in the professions. The panel is of the view that the medication administration errors were remediable. However Ms Charman has provided the panel with no information that she has remedied the most recent errors. The panel is mindful of the fact that, although she made an error in 2008 and thereafter received training and supervision, nevertheless she went on to commit further errors in March So far as the dishonesty is concerned the panel is of the view that the public would be dismayed if it did not find that the Ms Charman s fitness to practise was impaired. Ms Charman undermined the reputation of the profession. This combination of reasons therefore leads the panel to conclude that it would not be appropriate for Ms Charman to remain on the register without restriction. It therefore finds her fitness to practise impaired. Determination on sanction: In reaching a decision as to what sanction to impose the panel has carefully considered the Indicative Sanction Guidance published by the NMC. It has had regard to the public interest and Ms Charman s own interests. By the public interest it is referring to the protection of patients, the maintenance of standards of nursing and declaring and upholding the good name of the profession and the NMC. This is a case in which Ms Charman made further medication administration errors on 1 st March 2009 notwithstanding supervision and training after the initial medication error in November As mentioned those medication errors were remediable, but she sought to cover the most serious of them up by falsely contending that the medication was not on the ward. When accosted on 2 nd March 2009 about the fact that the medication had not been given on 1 st March 2009, she did not seize the opportunity to acknowledge her mistake. Instead she completed the prescription chart for patient x by adding the figure 1 to indicate the medication was not to be found on the ward, and she sought to maintain that deception when interviewed about it on 5 th March It may be that she was under some pressure with regard to a disciplinary interview in relation to her medication errors scheduled to take place on 7 th March 2009, but that was not a good enough reason to behave as she did. Indeed the deception casts the medication errors into a graver light because it suggests that she had lost the focus of trying to remedy errors. It is also true to say that Ms Charman s deception concerning her failure to give the medication would not have harmed patient X, for Nurse Tambellini had obtained additional medication for him on 2 nd March 2009, when she discovered he had not had the medication on 1 st March But Ms Charman s deception exposes the fact that she was prepared to retrospectively amend a patient s prescription chart. Ms Charman did not attend the hearing to demonstrate her remorse, nor to seek to satisfy the panel that there will be no repetition of this behaviour. The panel is mindful of the case of Parkinson v. NMC [2010] EWHC 1898 in which the following passage appears: A nurse who has acted dishonestly is always at severe risk of having her name erased from the register. A nurse who has acted dishonestly, who does not appear before the panel.. to demonstrate remorse, a realisation that the conduct criticised was dishonest and an undertaking that there will be no repetition, effectively forfeits the small chance of persuading the panel to adopt a lenient or merciful outcome and to suspend for a period rather than direct erasure. Other cases cited before the panel, Nicholas-Pillai v. GMC [2009] EWHC 1048 and Atkinson v. GMC [2009] EWHC 3636 are to like effect. With these preliminary observations in mind, the panel has reached the view that it would not be appropriate to impose no order, a caution order or a conditions of practice order. It next considered whether it should impose a suspension order, but such an order is only appropriate if the behaviour of the registrant was not fundamentally incompatible with being a registered nurse. The panel has reached the view that, in the absence of compelling evidence of insight and a demonstration by Ms Charman that she Page 5 of 5

6 could return to practice without the reputation of the profession being damaged, a suspension order is not appropriate. Accordingly the panel orders that Ms Charman s name be removed from register. Determination on interim order: The panel makes an interim suspension order for 18 months on the grounds that it is necessary for the protection of the public and that such an order is otherwise in the public interest. The reasons for its conclusion are set out in the substantive order. Page 6 of 6